The SSHRC, the Social Sciences and Humanities Research Council, has been involved in handing out more taxpayer money for the stated purpose of combatting “disinformation”. For the 2023 year, grants have been issued in the amount of $10,000 each, to various people.
Of course, this isn’t the first time such grants have been issued. It’s just the latest iteration of these initiatives.
promote Canadian research that will develop better understanding — based on empirical evidence — of the impacts of online disinformation in Canada in order to better inform programs and policies;
build Canada’s capacity to conduct research on and related to countering online disinformation and other related online harms; and
help foster a community of research in the digital citizenship and online disinformation space in Canada.
NAME
YEAR
AMOUNT
Brown, Carol A.M.
Jan 1, 2023
$10,000.00
Chen, Yu-Chen
Jan 1, 2023
$10,000.00
Dowling, Erin Jennifer
Jan 1, 2023
$10,000.00
Farokhi, Zeinab
Jan 1, 2023
$10,000.00
Kennedy, Angel M.
Jan 1, 2023
$10,000.00
Lin, Hause
Jan 1, 2023
$10,000.00
Malo, Benjamin
Jan 1, 2023
$10,000.00
Martel, Marc-Antoine
Jan 1, 2023
$10,000.00
Miller, Mark D.
Jan 1, 2023
$10,000.00
Munro, Daniel
Jan 1, 2023
$10,000.00
Park, Jeong Hyun
Jan 1, 2023
$10,000.00
Rodrigues, Daniel
Jan 1, 2023
$10,000.00
Stijelja, Stefan
Jan 1, 2023
$10,000.00
If nothing else, at least the grants and recipients are easy to find online. It’s always beneficial to know who’s on the Government payroll.
There is also a sub-group of this program, designed to partner with various colleges and universities to achieve what are essentially the same goals. These are the: (a) Insight Grant Supplements; (b) Postdoctoral Fellowship Supplements; and (c) Doctoral Award Supplements. Eligible areas include:
Creators and propagators of online disinformation in a Canadian context.
Digital techniques used to spread online disinformation in a Canadian context.
Sectors of Canadian society more or less vulnerable to online disinformation, including how disinformation may specifically affect marginalized, minority and Indigenous communities.
Effects of exposure to information and online disinformation on Canadians’ individual beliefs and behavior as well as overall mental health.
Different impacts of online disinformation in Canada and on Canada, including on democratic institutions and elections.
Government responses to online disinformation.
Disinformation outside of the internet/not online in a Canadian context.
In short, grant money is available to those willing to research into ways of “combatting misinformation”. Plainly stated, this is anything the Government disagrees with.
While Ottawa may not be banning free speech (yet), they are working on ways to limit the scope and depth of what is being talked about.
It’s no secret that very little (if anything) the Canadian Government does actually originates organically from within this country. Typically, some international body or N.G.O. is responsible for setting it in motion. And efforts to combat misinformation online are no exception.
Activities like the Digital Citizen Initiative and Digital Citizen Contribution Program understandably raise questions. In a free and open society, should the Government be attempting to influence and manipulate public opinion on important topics? Why are we paying for this? And does this sort of thing end up doing an end run around democracy? (Not that we really have one)
Turns out that this stems from a 2018 agreement that received little coverage in the mainstream press. Here is how it’s explained on the Paris Call website.
In 2018, French President Emmanuel Macron launched the Paris Call for Trust and Security in Cyberspace with the goal of addressing new cyberspace threats that could endanger citizens and infrastructure. The Paris Call invites all cyberspace actors to work together and encourages states to cooperate internationally with private sector partners, the world of research, and civil society organizations.
Supporters of the Paris Call commit to working together to adopt responsible behaviour and secure cyberspace, based on a set of nine common principles. These principles act as a non-binding declaration and set a precedent as the largest-ever multi-stakeholder cybersecurity agreement in modern history.
Today, over 95 governments, nearly 350 international organizations, as well as more than 600 private sector entities have endorsed the Paris Call for Trust and Security in Cyberspace. Prime Minister Justin Trudeau publicly pledged Canada’s support for the Paris Call in November 2018.
The media grants to “safeguard democracy” are somewhat known in media and political circles. But what isn’t discussed is the international agreement done to make this happen.
Now, were any referendums or election campaigns ever held on joining some initiative like this? No. And it raises the question of who exactly will be setting the standards, enforcing the standards, and what kind of private information that will be shared.
Of course, Microsoft is involved in this project, because, why not?
As with all (or at least, most) agreements, this is considered non-binding. However, Government treats it as if it were a legitimate obligation. Now, what are the ideas behind this?
9 Principles of the Paris Call:
Protect individuals and infrastructure
Protect the Internet
Defend electoral processes
Defend intellectual property
Non-proliferation
Lifecycle security & supply chain security
Cyber hygiene
No private hack back
International Norms
On their own, these principles seem harmless, and in fact beneficial. But with all things, the details of how it would be implemented are worth looking at.
The Paris Call is supported by some 400 N.G.O.s and 700 private corporations, at least, according to recent updates on the site. That of course raises the question of who’s just there in a symbolic capacity, and who was actually involved in drafting these documents. They emphasize multi-stakeholder participation at the U.N., without really specifying.
Here, the Government uses taxpayer money to “combat harmful disinformation“. Now, it doesn’t (yet) call for the banning of certain viewpoints, but it does mean subsidizing and financing favourable ones.
This has led to the Digital Democracy Project and the “Media Literacy Week“, among other initiatives. The Federal Government is using taxpayer money to domestically implement an international agreement for cyberspace security.
The Digital Citizen Contribution Program was an initiative to hand out fairly large sums of money to “media influencers” that could potentially sway public opinion on a number of different topics.
The amounts and recipients of earlier grants were previously covered here. That addressed the DCCP, but was not exhaustive of these programs.
Special Ukraine Crisis Call
In the light of Russia’s invasion of Ukraine, this special call is aimed to address the growing spread of harmful misinformation and disinformation. The special targeted call was launched to fund initiatives that help people identify misinformation and disinformation online.
Yes, the Feds actually had a program to contract out influential people that could manipulate public opinion on the Ukraine-Russia situation. Is war propaganda ethical at all?
It’s not a stretch to see politicians go to the next level, and start banning or restricting viewpoints that contradict official narratives. It’s been talked out before.
One final point: let’s not pretend that this is limited to Trudeau or the Liberals. Had Stephen Harper been re-elected in 2015, he surely would have signed onto it.
Several people recently forwarded this lawsuit from Byram Bridle, filed just before Christmas. He’s a Professor at the University of Guelph, and has had an eventful last few years. The Claim is 73 pages long, demands $3 million, and is interesting…. to say the least.
It’s difficult to know what’s true and exaggerated, simply because it reads like a comedy skit. The Statement of Claim alleges grand conspiracies between the University of Guelph, various employees and administrators, and some “experts” online.
Also, one of the people Bridle sued is a lawyer in that Province. It appears doubtful this will go over well with the Law Society of Ontario, especially given Galati’s $500,000 suit against them and their former intake officer. That one was filed July 2022, and is facing a Rule 21 Motion to Strike.
Allegedly, they’re all working together to financially and professionally destroy Bridle, because…. reasons, or something. It’s never made clear.
On December 19th, 2022, Dr. Byram Bridle issued a Statement of Claim in Ontario Superior Court. The expert vaccinologist, and viral immunologist, states that he has been viciously and falsely attacked by some of his colleagues, with the complicity of the University administration. Some of the Defendants include the President of University of Guelph, Dean Wichtel, Administrator Arnott, Professor Pyle, Professor Weese, and Dr. David Fisman at the University of Toronto.
Also, it’s a bit unclear how to describe Bridle himself. He’s portrayed as an expert in vaccines and immunology, and was developing vaccines against Covid-19. Granted, that doesn’t exist, but that’s another issue. In the same document, he’s a vocal advocate against people getting these shots.
In this scenario, Bridle is about the only rational one. Others are trying to harass, bully, intimidate and crush him. Again, it’s hard to know what’s real, what’s exaggerated, and what’s flat out untrue.
One disturbing trend within the “freedom movement” is that many see nothing wrong with using the Courts to silence people they disagree with. Kulvinder Gill and the Canadian Frontline Nurses are recent examples.
Does Bridle have a valid case? Maybe, but as it’s written, it’s pretty hard to read without laughing. Guess we’ll have to see.
Why Bridle lawsuit will never go anywhere
Aside from the issues noted above, there’s a bigger problem. The Statement of Claim came from the Constitutional Rights Centre, which has a history of filing: (a) very poorly drafted suits; and (b) letting lawsuits sit for months or years without activity.
Here are some recent ones:
Vaccine Choice Canada (VCC), et. Al. (and others) v. Her Majesty the Queen, et.al. (and others) Ontario Superior Court #CV-00629810-0000. Filed October 2019. No movement since pleadings closed in March 2020.
Vaccine Choice Canada (VCC), et. Al. (and others) v. Justin Trudeau, et.al. (and others) Ontario Superior Court #CV-20-00643451-0000. Filed July 2020. Single Statement of Defense in August 2022.
Gill & Lamba v. MacIver et al. Ontario Superior Court #CV-20-00652918-0000. Filed November 2020. Dismissed as a SLAPP, or strategic lawsuit against public participation. Appealed, but status unknown.
Gill v. Attaran & University of Ottawa, Ontario Superior Court #CV-21-00658784-0000. Filed March 2021. A Notice of Intent to Defend (not an actual Statement of Defense) was filed in July 2021. No movement since then.
Sgt. Julie Evans, et al v. AG of Ontario, et al Ontario Superior Court #CV-21-00661200-000. Filed April 2021. No movement since Notice of Application filed.
M.A. and L.A., et al vs. Eileen De Villa, et al Ontario Superior Court #CV-21-00661284-0000. Filed April 2021. No movement since Notice of Application filed.
Action4Canada, et al vs. Dr. Bonnie Henry, Justin Trudeau, Premier Horgan, et al British Columbia Superior Court # VLC-S-S-217586. Filed August 2021. Struck in its entirety.
Adelberg et al. v. Attorney General et al. Federal Court #T-1089-22. Filed May 2022. Motion to Strike commenced November 2022.
Kulvinder Gill and Ashvinder Lamba are out at least $1.1 million for a failed $12.75 million defamation suit against 23 individuals and organizations. Their case was predictably dismissed as a SLAPP.
Gill and Lamba bizarrely decided to appeal that dismissal. Given how baseless the original defamation suit was, this will just lead to much larger cost awards when it’s finally thrown out. There had been talk of a second Appeal, one specific to the cost Order.
Gill has another $7 million suit pending against the University of Ottawa, and one of its professors, Amir Attaran. This is even weaker, and vulnerable to another SLAPP Motion.
Action4Canada is currently appealing an August decision to strike the 391 page Notice of Civil Claim in its entirety. Instead of simply drafting it properly, this will waste time and money.
Vaccine Choice Canada’s high profile suit from July 2020 has sat idle since the filing. It’s nearly 200 pages, and contains plenty of irrelevant information that would lead to it getting struck. It’s unclear at this point who has even been served. Note: see below.
Vaccine Choice Canada has an earlier lawsuit from October 2019. The last activity was March 2020, when the pleadings closed. That was over 3 years ago.
Police On Guard arranged for an Application, which was filed on April 20, 2021, nearly 2 years ago. It sits dormant, with no activity whatsoever. It’s disjointed and nearly impossible to understand.
Children’s Health Defense (Canada), also has an Application from April 20, 2021. It’s essentially a cut and paste of the Police of Guard version. It too has sat dormant for almost 2 years.
This is not the work of people who are truly committed to seeing their cases through. These seem much more like placeholders. There’s no reason to assume Bridle’s case will be treated with any urgency.
Finally movement with Vaccine Choice Canada case?
When perusing the Ontario Superior Court SEARCH, this was recently updated for Vaccine Choice. Apparently, there is a case conference set for January 17, 2023, which just a few weeks away.
This was a bit of a surprise, considering that the case was 2 1/2 years old, with no activity. Most likely, this conference is to set down a hearing date for a Motion to Strike. After all, the case is still in its infancy, and is nowhere near ready for a trial. The Parties haven’t yet appeared even a single time.
The 191 page document doesn’t comply with the Rules of Civil Procedure, so this outcome shouldn’t be a surprise to anyone. Also see here, and see here.
If the Ontario Attorney General is going to attempt to have this suit thrown out, the above reviews will outline what to expect.
As for the Bridle lawsuit, don’t expect it to go anywhere, anytime soon. It wouldn’t be a shock if it just remained idle for the next 3-5 years.
The group Canadian Frontline Nurses, CFLN, has had their million dollar defamation suit thrown out as a SLAPP. This is of course, short for strategic lawsuit against public participation. This is when the Courts are improperly used to silence speech or expression on public interest discussion.
Note: although the ruling has been handed down, it’s not yet posted publicly. It will be included here when that happens.
CFLN and 3 of its members: (a) Kristen Nagle; (b) Sarah Choujounian; and (c) Kristal Pitter, were all listed as Plaintiffs. They had sough general damages for defamation of $750,000.00, and another $250,000.00 for aggravated, exemplary or punitive damages.
This lawsuit centered around 2 articles. Are they worth $1 million?
Article posted by Canadian Nurses Association, September 9, 2021
Enough is enough: professional nurses stand for science-based health care
The reckless views of a handful of discredited people who identify as nurses have aligned in some cases with angry crowds who are putting public health and safety at risk. They have drawn in anti-science, anti-mask, anti-vaccine, anti-public health followers whose beliefs align with theirs. For some reason they would have us believe that millions of the best educated health scientists, public health experts, physicians and nurses globally have all missed something they have not. Their outlandish assertions about science would be laughable were they not so dangerous.
Now the focus is on images of surly mobs happy to stand in front of health-care settings and harass, threaten, and even assault health-care workers coming and going in the business of saving lives. These protests have stunned and saddened exhausted health-care workers. They are demoralizing, infuriating and dangerous.
Anti-public health disinformation threatens to confuse a tired and bewildered public by deliberately misrepresenting personal ideology as facts, and science as conspiracy. The public should be assured that the vast majority of Canada’s 448,000 regulated nurses are united in their commitment to operate from a stringent code of ethics, and they are duty-bound to use science, evidence, and facts in assessing, planning, and evaluating the care they deliver to people across Canada. This scientific approach is a fundamental ideology of modern nursing.
This portion of an article published by the Canadian Nurses Association was quoted to support the defamation claims against the organization and leadership.
Here’s the problem: nowhere in the article are any of the Plaintiffs named. This is a fatal error in a defamation case, as defamatory speech or expression has to be of the person(s) suing. This article could refer to anyone.
However, the Claim states that they were “referred”, and that should be enough. That’s going to be a very tough sell.
Article posted by Together News/Comox Valley, September 11, 2021
There was another article, this one from Comox Valley. While this one did mention the Plaintiffs by name, it appeared to be referencing (for the most part) quotes that they had made. While the January 6 comments seem out of place, it’s difficult to see how these leads to $1 million in damages.
Statements of Defense laid groundwork for anti-SLAPP Motion
Both documents reference Section 137.1 of the Courts of Justice Act, which is the legislation on which anti-SLAPP is based upon. The Defendants signaled that they would be bringing Motions on this. And that’s what they did.
Lawsuits like this actually harm freedom movement
Yes, the “health restrictions” are based on deception and distortions of reality. But this doesn’t help. Considering that these groups claim to be pro-freedom, suing critics makes it difficult to take them seriously.
In December 2020, Kulvinder Gill and Ashvinder Lamba filed a $12.75 million defamation lawsuit against 23 people and media outlets. It was (predictably) thrown out as a SLAPP. Gill still has another $7 million suit against Amir Attaran and the University of Ottawa.
These kinds of suits have exposed a certain sect of society: there are plenty of people who “claim” to support freedom, and free speech, but who don’t. Instead, we have people who selectively support speech depending on the ideology involved.
Appeal is already being promised
Canadian Frontline Nurses is promising to appeal the SLAPP ruling. This is pointless, as the Ontario Court of Appeal isn’t going to overturn any of this.
Now, are they simply getting very poor advice, or are the donations that come in making it all worthwhile?
Remember the big stories in 2018 when Lindsay Shepherd and Jordan Peterson each sued Wilfrid Laurier University for millions of dollars? There was strangely little to report on for the next 4 years. That’s about to change.
Laurier recently filed an anti-SLAPP Motion.
SLAPP is an acronym for strategic lawsuit against public participation. These are a specific type of suit, ones that are brought (or alleged to have been brought) for the purpose of shutting down public discourse. Laurier’s Motion Record can be obtained from the Ontario Superior Court, and it’s interesting.
Turns out, there’s more to the story.
Lindsay Shepherd sued Laurier in 2018 for a total of $3.6 million. Among other things, she claimed that her prospective career in academia had been ruined by her experience. The suit named: (a) the school itself; (b) Nathan Rambukkana, a professor of communications studies; (c) Herbert Pimlott, also a professor of communications studies; and (d) Adria Joel, the acting manager of gendered violence prevention and support.
June 18, 2018, Jordan Peterson filed a $1.5 million suit against the same Defendants as Shepherd: (a) Wilfrid Laurier; (b) Rambukkana; (c) Pimlott; and (d) Joel. He announced it online as well, making sure there was public knowledge.
Peterson did something else, which was cited in Court papers: he admitted he brought the suit for purposes other than what was filed. He said that he wanted Wilfrid Laurier to be more careful in how they talk about people, and also, that he didn’t think they learned their lesson. These statements have the potential to haunt him later on.
Given how public the suits from Shepherd and Peterson were, the school felt compelled to respond in the same manner. They announced that they thought these proceedings — in particular, Peterson’s — were being used to stifle discussion.
What the Defendants were doing was setting up a defense under Section 137.1 of the Courts of Justice Act. This has been on the books since 2015.
Prevention of Proceedings that Limit Freedom of Expression on Matters of Public Interest (Gag Proceedings)
Dismissal of proceeding that limits debate
Purposes
137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,
(a) to encourage individuals to express themselves on matters of public interest;
(b) to promote broad participation in debates on matters of public interest;
(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.
Anti-SLAPP legislation exists in Ontario, and other jurisdictions — to prevent the Courts from being weaponized on issues of public interest. The Defendants were going for the argument that this is exactly what was happening with Peterson.
Peterson then decided to sue Wilfrid Laurier a second time.
Note: there is an error with the Court display. The second lawsuit is actually worth $1,750,000, not the $175,000 that is listed.
There is actually a second lawsuit on file for Jordan Peterson. It was filed September 11, 2018. He claims that Laurier’s defense (claiming he brought the initial suit to silence public discussion) amounts to further defamation. He sued again, but this time, it was only against the school itself.
Statements of Defense have been filed concerning both of Peterson’s lawsuits. The first was on August 31, 2018, and the second was on October 11, 2018.
Apparently, publicly raising an anti-SLAPP defense in a public case amounts to further defamation. It’s unclear what made Peterson think this was a good idea.
Anyhow, the university entered some of their correspondence into evidence, and it’s very interesting. All of this is available in the Motion Record. This anti-SLAPP Motion appears to only address the second lawsuit. A likely reason is that this would be a much easier target to get thrown out.
According to the correspondence submitted in the Motion Record, Laurier’s lawyers have found it strange that Peterson has apparently had prolonged health problems. After all, he has been keeping busy with:
Authoring another book
Hosting a podcast
Participating in media interviews to promote his book
Walking several miles a day
It was reasoned that if Peterson is able to do these, then he should be willing to make himself available to be questioned (deposed).
Depositions are routine in major lawsuits. They are also common in anti-SLAPP Motions. Peterson would have to swear out an Affidavit outlining the damages he suffered, and would then be subject to cross-examination. However, this apparently hasn’t happened.
One can speculate as to his motives, but it seems Peterson has bent over backwards to avoid having to testify under oath, or give evidence.
If he were to discontinue the case, it would be a huge blow to his pride. It would be far worse if his cases (either of them) were dismissed as SLAPPs. Having a Judge rule that Peterson commenced litigation to silence public discourse would destroy his reputation as a “free speech champion”.
Peterson can’t bring himself to admit what he did. But he knows the consequences of losing. Therefore, the only option may be to drag it out indefinitely. It’s worth noting that Ontario Superior Court typically dismisses cases that haven’t been set down for Trial after 5 years, unless good cause it shown. Both of his suits are well past the 4 year mark.
And what happened when Peterson sued Laurier the first time? This!
This 2018 tweet from Lindsay Shepherd is pretty comical. After suing her university for $3.6 million, Peterson decides to pile on with another $1.5 million claim. It never seemed to dawn on her that the school might try to defend itself.
By “suing her”, what Laurier actually did was file a 3rd Party Claim. This is a form of a defense, where a Defendant states that they are not responsible for alleged damages, but someone else is. In this case, the school takes the stance that Peterson should actually be suing Shepherd. They have a valid point.
She secretly recorded a private conversation, and turned it into an international story. Regardless of the nonsense in that meeting, she chose to make it public.
Shepherd’s $3.6 million lawsuit doesn’t appear to have gone anywhere either.
Free speech absolutism also doesn’t seem to be a factor. Peterson has shown he’s perfectly okay with de-platforming identitarians, who hold views he disapproves of. The above video was of Faith Goldy being disinvited to a free speech panel. It makes a mockery of the principles he claims to hold.
While Rambukkana, Pimlott and Joel acted like clowns in 2017, Peterson shouldn’t be celebrated. He has demonstrated that he’s quite willing to use the legal system as a weapon.
In the Summer of 2021, Peterson advocated for people to suspend judgement on the lockdown measures that were being implemented across the globe. Vaccine passports were implemented shortly afterwards. Gee, it’s almost as if he knew this would happen.
Despite his reputation, he’s hardly a freedom champion.
Peterson was also denounced as a limited hangout years ago for his refusal to address more complex and controversial subjects. Search “I can’t do it” for just one example of that.
But They Compared Me To Hitler….
In various interviews, Peterson never seems to tire pointing this out. Yes, it was unprofessional, and yes, inappropriate. But there comes a point where he needs to move on.
Peterson has admitted becoming extremely wealthy in the last few years. He went from being an unknown to a household name in a very short amount of time. The incident with Shepherd and Wilfrid Laurier helped immensely.
He would be hard pressed to demonstrate how that November 2017 meeting caused him damages. And remember, it was private. It only became public after Shepherd leaked the audio.
One of the things Plaintiffs in anti-SLAPP Motions must do is prove they have suffered meaningful damages as a result of the speech or expression. If they are just nominal or non-existant, such suits are supposed to be dismissed. This is probably the reason he keeps delaying the case.
This development was covered in the National Post, but the Motion Record wasn’t included.
The Motion should be heard in 2023, to dismiss the second Peterson suit.
What will happen to his first lawsuit? If this initial anti-SLAPP Motion prevails, it seems likely that Laurier will file another to get the original case thrown out. Peterson could potentially lose 2 anti-SLAPP rulings when this is over.
That said, Peterson is now a multimillionaire, so the legal fees shouldn’t be a burden.
The Nova Scotia Court of Appeal ruled a week ago on a challenge to a May 2021 injunction. Previously, the Provincial Supreme Court ruled ex-parte that Robert Strang could effectively suspend freedom of assembly on an indefinite basis.
The Canadian Civil Liberties Association, CCLA, applied to intervene to appeal the matter. It was granted on August 31, 2021. Due to the complexity of the issues, and other delays, it took a year for the case to be heard.
While the issue of infringing on civil rights did come up in the decision, it wasn’t front and center. Instead, there were many procedural errors cited. Still, the trio did make many findings which can be used at a later date. It wasn’t a total loss.
Strang got (rightfully) rebuked for his overreaching power grab, but it could have been done in a much more forceful way.
Overall, it’s a “meh” kind of ruling.
Issues:
1. Should the Court hear an appeal of an ex parte order?
.
2. Should the Court entertain a moot appeal?
.
3. Did the judge err by:
a) Granting an injunction order without the applicants having advanced any common law cause of action, statutory authority, or other right to a remedy;
b) Applying the test for an interlocutory injunction to the applicants’ request for a permanent injunction;
c) Stating and applying the wrong test for a quia timet injunction;
d) Granting an Injunction Order against all Nova Scotians without requiring evidence that such a remedy was needed against all Nova Scotians;
e) Granting an injunction order without considering that the order infringed the Charter rights of all Nova Scotians and that this infringement may not be justified in circumstances;
f) Accepting the evidence of a named applicant as independent expert evidence, without compliance with Rule 55 or the common law requirements for independent expert evidence.
Between the 3 Justices, there was some dissent on a few issues, although they seemed to agree for the most part. The more important things they were all in agreement on:
The Attorney General’s application should not have been ex parte;
The Court should hear this moot appeal;
Dr. Strang’s expert opinion was not admissible;
The Nova Scotia Supreme Court had the jurisdiction to issue a quia timet injunction to enjoin apprehended breaches of the Public Health Order made pursuant to the Health Protection Act;
The motion judge erred when he employed the test for an interlocutory injunction when he actually was asked for and did issue a permanent injunction;
The motion judge erred by not considering the impact on Charter rights when considering if he should issue the requested injunctive relief;
The motion judge erred by issuing injunctive relief that was far too broad.
There was dissent on the following:
The AGNS failed in its duty to provide full disclosure of information in its possession on the ex parte application;
The motion judge erred in law in finding the prerequisites for a permanent quia timet injunction had been made out;
Dr. Strang’s opinion about the risk of outdoor transmission should not have been accepted because he lacked the necessary independence and impartiality as set out in White Burgess.
In contrast to a few other recent decisions, the NSCOA decided to hear the case in spite of it being moot. The issues were of such a public interest that it should go ahead. This differed significantl from other recent cases, in which there was no inclination to do so.
(Para 47) The COA disagreed that applying for an injunction without notice was appropriate. Unless: (a) it’s impossible to give notice; or (b) giving notice may cause the event, this type of procedure shouldn’t be attempted. The Government could have given notice, but simply found it more expedient not to.
(Para 54) The Government chose a method that was designed for temporary measures, but the open-ended nature of the Order sought was effectively permanent, or semi-permanent. There was no end date provided.
(Para 56-57) The Government tries to argue that it would have met the test for a permanent injunction with the information it had the time. Additionally, the Court found that the wrong test had been applied for in seeking a permanent — as opposed to temporary — injunction.
(Para 61-63) The proper quia timet test was used. This is a test used to get injunctions based “on the fear of” something happening. Problem is, this test seems to be almost entirely subjective, and open to abuse.
(Para 64-69) The question came up as to whether or not there was even a valid cause of action. The Court decided that the likelihood of these Orders being violated, combined with the fear of disease spreading, was justifiable in and of itself.
(Para 127-140) The Order applied not only to certain people wanting to attend gatherings, but to Nova Scotians as a whole. The Court also said that this was overreaching given the overstated likelihood of infection.
(Para 141-148) The Court took issue with the fact that the original Order was obtained ex-parte, and there wasn’t enough consideration given to the Charter violations that would likely result.
(Para 149-168) Robert Strang, the Medical Officer of Health, should not have been qualified as an “expert”. Given his position, there was an inherent conflict of interest. He gave evidence in support of submissions that would validate his own demands. As such, he wasn’t separate enough.
[169] The Province incorrectly applied for a permanent ex parte injunction, but argued the test for an interim injunction described in RJR. The Province should have sought an interlocutory injunction on notice to which the RJR test properly applied. The Charter rights engaged should have been considered in the balance of convenience step of the RJR test.
[170] The Province did not establish a basis for granting either an interlocutory or permanent injunction because it did not tender admissible evidence of outdoor transmission of COVID-19 on which a finding of “high probability” of serious or irreparable harm could be grounded. The Chief Medical Officer should not have been qualified as an expert. In any event, the Order granted should not have been indefinite as to time, place and person.
(Para 200-218) The issue of mootness came up. Since the Orders have been rescinded, was there an issue to even be tried? The NSCOA decided to limit its scope to questions of law, and not revisit the factual findings from the Lower Court.
(Para 220-247) Robert Strang’s role as expert witness was questioned, given his conflict of interest. The NSCOA acknowledged that sections 8, 20, 24, 32 and 37 give him the right to issue directives based on his opinions and beliefs.
(Para 248-280) The ruling went on at length as to whether the proper test had been applied for permanent injunction. This was important, as it related to the concerns of Charter breaches. The Judges agreed that the test hadn’t been met.
(Para 281-303) The Court of Appeals took issue with the fact that the injunction would apply to everyone in the Province, and was done without the means to challenge in the first place. It was an error of due process to not allow others to confront accusers. This wasn’t limited to a select group, either.
(Para 303-328) The Panel avoided the question — for the most part — about whether these Orders were violation of Charter rights. A full analysis apparently wasn’t required. Instead, there was more of an issue with the roughshod way this was done. In short, there were more procedural than substantive problems.
(Para 329-350) Is this “virus” transmissible, and was there proper disclosure? Here, the NSCOA seemed to avoid that, and simply stated that Strang was offering full disclosure with whatever available information he had. He was able to get the injunction without introducing actual evidence. The Court didn’t seem too bothered by that.
In a sense, this was academic, as there’s currently no Order in place. Still, there’s a ruling now, and the good parts may be useful later.
SOME THOUGHTS ON THIS
It was helpful to have a (somewhat) favourable ruling from Nova Scotia. However, the problems go much deeper than just the Charter, or some Officer of Health. To date, it doesn’t seem that any lawyer has brought this forward.
Although probably outside the scope here, it would be nice to see the Public Health Acts themselves challenged in Court. No one ever voted for this, but the W.H.O. is able to write our laws to include medical tyranny.
If laws are put in place that aren’t written in this country, shouldn’t that be grounds to have them challenged and struck down?
Also, it’d have been preferable to fully address the issue of civil rights violations. Freedom of assembly, especially when protesting Government overreach, is an important ability to have. Without it, there’s no open society.
The NSCOA acknowledged that the May 2021 Order violated Charter rights, but didn’t really dive into it. Instead, they seemed more content to focus on the many breaches of procedure that had taken place.
The panel also seemed to go out of their way to give Strang the benefit of the doubt. He took the rights of a million people away. He needs to be held to account, not given deference.
On the bright side: there are parts of this ruling which could be the basis for future actions at a later date, such as restricting the use of ex-parte injunctions. It wasn’t a complete loss. Another Judge might quote portions of this to come to favourable conclusions elsewhere.
